Resetting Ghana, PACE (2)

With the assumption of power by the National Democratic Congress (NDC), the stage is set for the party to execute the policies that convinced Ghanaians to give them victory at the polls.

At the heart of the NDC campaign was a promise to ‘reset’ Ghana as the country had gone off track in many areas, not least governance and law and order.

This ‘resetting’ agenda has resonated with me, as it has coincided with the ongoing crusade, at least in the areas of human rights and criminal justice, for root and branch reform.

The goal is to achieve a situation where Ghana can stand proud in the comity of nations, as a place where adherence to internationally accepted human rights practices within the criminal justice system is the norm.

As previously argued, one way of ‘resetting’ Ghana in the criminal justice system in the area of policing would be to introduce legislation, which would regulate all aspects of policing in respect of the investigation of crime and the subsequent prosecution of accused persons.

It was suggested that an Act of Parliament along the lines of the Police and Criminal Evidence Act (PACE) of England and Wales would go a long way in realising the coveted desire to bring Ghana within the best practices of criminal justice administration globally.

Policing
PACE encompasses all the vital areas of modern-day policing: Power of stop and search, entry, search and seizure, arrests, detention, questioning and treatment of persons by police, documentary evidence and evidence in criminal proceedings, Police Complaints and Discipline, etc.

Whilst policing in Ghana vis-a-vis the investigation and prosecution of crime is not problematic, there are areas where there are teething problems, especially regarding arrests, detention and questioning of suspects.

The lack of clear legislation in these areas frustrates the effective defence of those accused of crime.

This ‘lacuna’ in the clear exposition of law is an avenue for ‘recalcitrant’ and overzealous policemen to exploit.

For example, roadside and highway barriers erected by the police have notoriously become avenues for the exploitation of road users by unscrupulous policemen.

While the obvious reason for these roadblocks is to prevent the transportation of Illicit drugs, arms and contraband goods, some of the police personnel at these checkpoints hardly inspect the cars and concentrate on finding any excuse to ‘extort’ money.

If Ghana had legislation akin to what has been canvassed above, this problem would be minimised if not completely eliminated.

This is because a comprehensive police law would impose some obligations on the police, which would safeguard the integrity of the exercise.

For example, before searching a person or vehicle or detaining a person or vehicle for the purpose of such search, the police officer would need to take reasonable steps to bring to the attention of the driver why he is being detained and, if the detention requires the police to have ‘reasonable suspicion’, with the grounds of that suspicion spelt out.

Also, the source of the policeman’s powers and any necessary authorisation must be explained.

Codes
Apart from these codes of practice, the actual sections of the Act provide a strict legal regime within which the police have to operate. For example, s.76 and s.78 comprehensively deal with the gathering of evidence.

The two sections deal with confessions and do not allow the admission of any confession if it is proved that the confession was secured under ‘oppression’ (any form of undue force exerted on the suspect) or by ‘things said and done’ (deceit, trickery deprivation of food, etc). S.78 provides for the exclusion of such evidence at trial.

It can be seen that the legislation of a PACE-type law would revolutionise police powers in Ghana. There have been multiple occasions, at least in my personal experience, where accused persons have challenged the voluntariness of their confessions.

In Ghana, just as in the UK, the court is obliged to have a ‘voir dire’ (mini-trial) to ascertain whether the confession was voluntarily made. In many such mini-trials, the courts conclude in favour of the police as, generally, it is the word of the police against that of the accused.

However, this problem would be eliminated if the police interrogation were recorded both ‒ audio and video ‒ as provided in Codes E & F of PACE.

It is hoped that the newly elected government will institute steps to introduce our own PACE as that would bring about a sea change in policing in Ghana.

The writer is a lawyer.
E-mail: georgebshaw1@gmail.com